High Court Weighs Border Between NJ, DE

By Bill CahirNewhouse News ServiceWASHINGTON -- If a man committed a murder while standing on a wharf west of the Gloucester County shoreline, the killer wouldn't necessarily be prosecuted in New Jersey, but in Delaware.

That surprising idea didn't come Tuesday from a law student conducting research into disputes between the American colonies. It came from John G. Roberts Jr., chief justice of the United States Supreme Court.

H. Bartow Farr, an attorney representing New Jersey before the nation's highest court, claimed that New Jersey officials would handle the supposed murder case. Farr cited a precedent involving a gambling law offense that had been handled by New Jersey officials in the 1950s.

But David Frederick, an attorney representing Delaware's interests in New Jersey versus Delaware, took a more nuanced position. Depending upon the facts of each case, authorities in Delaware would control the underwater land, and the laws and policies affecting anything that happened over that land, up to the low-tide mark on New Jersey's southwestern shore, Frederick argued.

In effect, a wharf murder off of Gloucester County could constitute a crime in Delaware.

The justices of the U.S. Supreme Court on Tuesday morning provided no quarter to two attorneys representing New Jersey and Delaware in the states' protracted border dispute.

The case will determine whether or not British Petroleum can go forward with its $700 million plan to building a liquefied natural gas terminal along 175 acres of the Delaware River shoreline in Logan Township.

The nation's top jurists took an obvious interest in a case involving the proposed liquefied natural gas terminal, which would be built in Gloucester County and operated by Crown Landing LLC, a subsidiary of BP.

Delaware in February 2005 formally blocked the Crown Landing liquefied natural gas facility from being built.

Delaware's state environmental agency ruled that the Crown Landing proposal to unload liquefied natural gas from tankers at a 2,000-foot pier in the eastern waters of the Delaware River would violate Delaware's state coastal management law.

The construction of a huge liquefied natural gas facility in Gloucester County wouldn't violate or even invoke Delaware law.

But Crown Landing's plan to build a pier jutting westward from the Logan Township shoreline would be built within Delaware's boundary, and Delaware state laws would apply, Delaware officials claim.

Delaware's ruling has brought the Crown Landing project to a halt even though the proposal and a pipeline that would go with it have been approved by the Federal Energy Regulatory Commission.

"One state shouldn't have veto power over another state's economic development and commerce," New Jersey State Senate Majority Leader Stephen Sweeney, D-Gloucester, said Tuesday after the high court heard oral arguments in the original case, New Jersey v. Delaware.

The dispute between New Jersey and Delaware arguably got started 325 years ago.

At the time, as part of the colonial land grant that created Pennsylvania, Delaware received all of the land within a 12-mile circle drawn from the court house in New Castle, Del.

Delaware state officials for generations have taken the position that the 12-mile circle includes the underwater land right up to the shoreline in Gloucester and Salem counties.

A special master recently appointed by the Supreme Court to review the Crown Landing dispute, Ralph I. Lancaster Jr. of Portland, Maine, effectively agreed with Delaware's position.

A two-state compact negotiated by New Jersey and Delaware officials and ratified by both states in 1905 established the Delaware border along the low-tide mark of Gloucester and Salem counties in southwestern New Jersey, Lancaster ruled on April 12.

The Supreme Court held conducted a hearing on Tuesday to determine whether or not to accept Lancaster's findings. The discussion cut across the partisan lines that sometimes polarize the court.

The justices asked whether the two-state compact struck in 1905 really gave Delaware veto power over any and all developments that might be proposed along the southwestern New Jersey coastline, and if so, what limits would apply to Delaware's authority.

Justice Samuel A. Alito Jr., a Trenton native, Princeton University graduate and a 15-year veteran of the U.S. Third Circuit Court of Appeals, the appellate bench for cases originating in Delaware, New Jersey and Pennsylvania, seemed distressed by the idea that Delaware could block the construction of South Jersey piers and wharves.

"Who decides whether it's a nuisance? If Delaware says that docking a sailboat is a nuisance, who decides that? Does all of this have to be decided by us in original cases?" Alito asked.

Pursuing the same point, Alito later wondered whether Delaware could pass a law directing landowners in southwestern New Jersey to tear down existing shoreline structures jutting into the eastern waters of the Delaware River.

Frederick, the attorney representing Delaware, argued that New Jersey property owners retained the right, under the two-state compact, to build wharves and piers from the southwestern New Jersey shore and into the eastern waters of the Delaware River.

Frederick effectively acknowledged one of Farr's central point, that the 1905 compact between the two states had guaranteed each state the right to continue exercising its riparian jurisdiction on each side of the border.

However, Frederick claimed that New Jersey land owners could not build shoreline structures for uses, such as off-loading liquefied natural gas, that were prohibited by Delaware state law.

Delaware had retained its police powers to regulate what happened on the piers and wharves built from southwestern New Jersey and into Delaware's underwater lands, Frederick argued.

Roberts at one point seized on Delaware's claim that the compact let New Jersey landowners build piers and wharves, but let Delaware regulate what happens upon them.

"Let's say it's perfectly fine for New Jersey to build a wharf out there, but they can't use it for liquified natural gas, which Delaware may conclude poses particular problems that other uses don't," Roberts stated.

Farr, the lawyer representing New Jersey, replied, "I think you've detached the purpose of a wharf from the wharf itself. The purpose of a wharf is the loading and unloading of goods. That's what -- what they are used for."

But the high court didn't seem eager to embrace New Jersey's position.

Justices Antonin Scalia and David Souter, among others, asked Farr whether New Jersey, through the interstate compact ratified by the two states 102 years ago, had won some explicit or extraordinary contractual right to regulate and set policies for underwater lands that actually belonged to the state of Delaware.

If the underwater lands off of Gloucester and Salem counties actually were located within Delaware, and not New Jersey, wouldn't Delaware state laws apply?

"Once (New Jersey) lost that land, it had nothing to exercise the power over," Souter proposed at one point.

"You're suggesting that Delaware relinquished all of its regulatory authority and gave it to New Jersey, no matter where the (state) boundary turned out to be," Ginsburg stated.

Frederick struggled to convince the justices to ignore the precedent they set with a recent case called Virginia v. Maryland. The ruling allowed Virginia to draw water from the Potomac River over Maryland's legal objections.

"That's the case here as well," Roberts said. "There's no doubt that New Jersey under the compact has the right to grant riparian rights, including wharfing out, that go beyond the low-water mark."

Frederick replied that, although New Jersey could authorize the construction of wharves or piers into Delaware's riverbed property, Delaware would retain "police powers" over the structures and what is permitted to happen upon them.

Sweeney attended the Supreme Court oral arguments on Tuesday with Assemblyman John J. Burzichelli and James B. Kehoe, president of the South Jersey Building Trades Council.

Burzicelli, D-Gloucester, claimed that Farr had well represented New Jersey's position. The compact, Burzichelli stated, not only preserved New Jersey's right to approve the construction of wharves and piers, but also the uses of such the shoreline structures.

"This compact of 1905 does allow New Jersey to have full regulatory authority over the riparian lands and extending into the channel," Burzichelli said. "That's the position that brought us here. And I think we've made that case. Now, have we made it to the satisfaction of the court? That's what really counts."